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Pitts v. Bayview Loan Servicing, LLC

United States District Court, D. New Jersey

March 5, 2018

GENOVEVA PITTS, Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC and PHELAN HALLINAN DIAMOND & JONES, LLP, Defendants.

          MEMORANDUM OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE.

         SIMANDLE, District Judge:

         In this action, pro se Plaintiff Genoveva Pitts alleges that Defendants Bayview Loan Servicing, LLC (“Bayview”) and Phelan Hallinan Diamond & Jones, LLP (“Phelan Hallinan”) illegally communicated with her regarding an attempt to collect an alleged debt in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. [Docket Item 1.] Pending before the Court are Defendants' motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6) [Docket Item 10] and Plaintiff's amended motion to amend the Complaint. [Docket Item 14.] For the reasons discussed below, the Court will grant Defendants' motion to and deny Plaintiff's amended motion to amend. The Court finds as follows:

         1. Factual and Procedural Background.[1]

         On January 8, 2014, Bayview filed a foreclosure action against Plaintiff in the Superior Court of New Jersey, Chancery Division, Salem County, under Docket No F-000581-14. [Ex. C to Docket Item 1.] Shortly thereafter, Plaintiff filed a voluntary petition for Chapter 7 bankruptcy with the U.S. Bankruptcy Court for the District of New Jersey, which automatically stayed the foreclosure proceedings. [Ex. B to Docket Item 10.] On October 1, 2014, the Bankruptcy Court issued a Discharge of Debtor Order, which discharged Plaintiff of her personal liability on the mortgage and note. [Ex. D to Docket Item 1.] The foreclosure action then resumed until, on November 10, 2016, the Chancery Court entered final judgment in favor of Bayview in the sum of $233, 042.42. [Ex. E to Docket Item 1.]

         2. On July 20, 2016, Plaintiff filed the first of two federal actions against Defendant Bayview (but not Defendant Phelan Hallinan), alleging that Bayview violated the FDCPA on five occasions between January 20, 2016 and May 20, 2016. See Pitts v. Bayview, Docket No. 1:16-4501-JBS-AMD (D.N.J. filed on July 20, 2016). Bayview filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which Plaintiff did not oppose. The Court subsequently dismissed Plaintiff's claims after finding she “fail[ed] to allege adequately in what respect the communications at issue violated any specific provision of the FDCPA.” Pitts v. Bayview Loan Servicing Loans, LLC, 2017 WL 2311664, at *2 (D.N.J. May 25, 2017).

         3. Plaintiff filed this second federal action on June 5, 2017, eleven days after this Court dismissed the first case. [Docket Item 1.] This time, Plaintiff added Phelan Hallinan as a defendant and alleged that Defendants improperly communicated with her on five different occasions between October 16, 2016 and November 22, 2016. [Id. at ¶¶ 114-207.] Plaintiff seeks statutory damages in the amount of $22, 000, actual damages in the amount of $223, 042.42, and fees and costs. [Id. at 22.]

         4. Defendants again moved to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Item 10.] Plaintiff untimely filed opposition to Defendants' motion [Docket Item 11], as well as a motion to amend the Complaint. [Docket Item 12.] Three weeks after Defendants filed papers in opposition to Plaintiff's motion to amend [Docket Item 13], Plaintiff filed an amended motion to amend. [Docket Item 14], which Defendants again opposed. [Docket Item 17.] In light of Plaintiff's amended motion to amend, the Honorable Karen M. Williams dismissed Plaintiff's first motion to amend as moot. [Docket Item 16.] Defendants' motion to dismiss and Plaintiff's amended motion to amend are now ripe for decision.

         5. Standard of Review.

         Under Federal Rule of Civil Procedure 12(b)(6), the court must “accept all factual allegations as true, construe the Complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the Complaint, the plaintiff may be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal citations omitted). In applying this standard to pro se pleadings and other submissions, as here, the Court must liberally construe the well-pleaded allegations, and draw all reasonable inferences in favor of the pro se litigant. Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011); Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184 (3d Cir. 2009). Despite this liberality, however, a pro se complaint must still “contain sufficient factual matter, accepted as true, ” to “state a [plausible] claim to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Marley v. Donahue, 133 F.Supp.3d 706, 714 (D.N.J. 2015) (explaining the same concept).

         6. Because Plaintiff asserts a claim under the FDCPA, a federal statute, the Court exercises jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1337(a), as well as 15 U.S.C. § 1692k(d).

         7. Discussion.

         After reviewing Plaintiff's Complaint and the court documents in the state foreclosure action, and for the reasons next discussed, the Court finds that Plaintiff has failed to state a cognizable cause of action for violating the FDCPA. Accordingly, the Court will grant Defendants' motion to dismiss. Moreover, because amending the Complaint would be futile, the Court will deny Plaintiff's motion to amend and the dismissal will be with prejudice.

         8. A plaintiff seeking to state a claim under the FDCPA “must establish that (1) he or she is a ‘consumer' who is harmed by violations of the FDCPA; (2) the ‘debt' arises out of a transaction entered into primarily for personal, family, or household purposes; (3) the defendant collecting the debt is a ‘debt collector'; and (4) the defendant has violated, by act or omission, a provision of the ...


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